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I posted an announcement on the SKWAWKBOX that I had added a PayPal link for anyone who wanted to make a donation to help me keep the blog going. If you’ve followed a link from there to here in order to make a monthly donation instead of a one-off, please go to the homepage of this site and use the widget to the right of the page to set it up.

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The SKWAWKBOX blog last month covered the betrayal of the country by LibDem peers who voted through the government’s ‘section 75‘ measures designed to parcel up the NHS for privatisation by forcing Clinical Commissioning Groups (CCGs) to put all NHS services out to tender and include private bidders.

This process was foreshadowed, by a few weeks, by the decision by the supposedly ‘independent’ team appointed to review the decision to break up Mid Staffs NHS services in spite of massive opposition from the local people. These ‘independent’ reviewers (who were the same people who made the original decision!) have put out an invitation to private providers to express their interest in taking over the broken-up services.

But this is not the only ‘example in microcosm’ of the government’s vision of how health services should look in the all-too-imminent future.

There has been very little coverage of this in the mainstream media, so you may not be aware of it, but (at least) two NHS hospitals are already considering what amounts to handing themselves over to private ownership in response to the war of financial attrition and ‘marketisation’ to which they are being subjected.

Weston

Weston Area Health NHS Trust has announced that, as a small DGH (district general hospital), it is unable to achieve the Foundation Trust status that the Health and Social Care Act 2012 (HSCA) mandates that all NHS acute (hospital) Trusts must achieve by April next year. As a result, it is inviting ’expressions of interest’ from the ‘health market’:

Midlands and East Strategic Projects Team (SPT) on behalf of NHS South, the NHS Trust Development Authority and Weston Area Hospital NHS Trust, is sounding the market providers for expressions of interest to engage in a competitive tendering process to find a partner organisation to deliver its requirements by either i) an acquisition by another NHS Acute Trust, Foundation Trust or other NHS Health Body; or (ii) an operating franchise.
..
NHS South commissioners and Weston Hospital NHS Trust agreed that a market procurement solution should be sought for Weston Area Health NHS Trust.

In other words, the hospital is offering private providers a ‘franchise’ to use its name and its NHS ‘brand’ to provide services for profit – perhaps by buying another hospital to run alongside it. The hospital board insists that

the Trust must and will continue to provide NHS services for NHS patients, and that whatever option is finally selected, all staff and assets will remain within the NHS

But if it walks like a private franchise.. you know how it goes. This measure merely illustrates the innate deception in the government’s plans (already well underway) to allow private providers to ‘badge’ themselves as NHS institutions, even while they are taking profits that could be spent in providing front-line services.

George Eliot

The George Eliot Hospital (GEH) NHS Trust’s website carries the following statement, under a headline of “Trust given green light for future plans“:

The Trust has announced they are moving forward with their plans to seek a strategic partner to secure a sustainable future for its services and the care it provides to local people after receiving agreement to proceed.

George Eliot’s Board has agreed that it is in the best interests of the hospital, its patients and staff to seek a partner via a competitive procurement process. This enables both NHS and non-NHS healthcare providers to make proposals and for the Trust to ensure that it can choose the best solution to achieve clinical and financial sustainability.

The phrasing here, by including ‘both NHS and non-NHS‘, is extremely deceptive. All NHS Trusts are under severe financial pressures at the moment, especially because the Treasury routinely ‘claws back’ any financial surplus from those Trusts who manage to balance their books. In this context, it is extremely unlikely that any other NHS Trust is going to express any interest.

This means that GEH is the latest in what is likely to become an extremely long list of NHS hospitals and under services coming up for grabs by private health operators.

Does it work?

A key question in all of this is, ‘Does it work?’. Are ‘franchising’ or other forms of privatisation likely to resolve financial problems and lead to better, more secure health services for patients?

There is one case study that we can already refer to: Hinchinbrooke. This hospital was handed over to private health company Circle from late 2011 into early 2012, amid much fanfare about how a private operator would run the hospital more efficiently than the ‘bureaucracy-ridden’ NHS.

However, in November last year the National Audit Office (NAO) published its audit report of the hospital and raised serious concerns:

Circle plans to achieve £311 million in projected savings over the ten-year life of the franchise, which is unprecedented as a percentage of annual turnover in the NHS..on an annual income of around £73 million

£311 million over 10 years means an average saving of £31.1 million per year – compared to a previous annual income of £73m – so around 43% of the Hinchingbrooke’s annual income before its privatisation. Even compared to the enhanced income of £107m that was granted to Circle to take over the hospital, the cuts targeted by Circle represent 29%.

Under no circumstances can cuts of 29-43% be made without adverse impact on services and on the patients who rely on them.

The NAO calls these savings ‘unprecedented’. They also appear to be unachievable. According to the NAO

the Trust had generated an in-year deficit of £4.1 million by September 2012, which was £2.2 million higher than planned

So, according to the NAO, Circle promised an ‘unprecedented’ level of cuts – and has been unable to deliver them. If it succeeds in its plan, the people who depend on Hinchingbrooke face massive reductions in their services – and if it fails, a hospital has been handed over to a private company for supposed ‘inefficiency’ and financial failings – for it to then fail to deliver promised efficiencies.

This is just common sense (though apparently not that common). If a non-profit company needs a certain level of funding to deliver services, a company that needs to take out money to deliver profits to shareholders is not realistically going to be able to deliver the same services at lower costs – even if it was true that private companies are more efficient, which last years G4S Olympic security debacle showed to be anything but the case.

When the government is obviously bent on a drastic increase in NHS privatisation, this can only be bad news for patients – and for their local economies, as less money will circulate into them via wages etc as private companies look to maximise profits in every possible way.

The plans mooted by the boards of these two hospitals are not directly linked to the recent ‘secondary legislation’ forced through under section 75 of the HSCA, but they do give a glimpse into the inexorable direction of travel that has been initiated in the NHS by the government’s Tory component, aided and abetted by large elements of the LibDems in the Commons and the Lords.

This constant and accelerating movement toward ever-increasing privatisation that will be difficult and expensive, if not impossible, to reverse by the next government, shows clearly how essential it is to carry the fight to the government and its agencies such as Monitor. The NHS Constitution is one of the last remaining – and perhaps most difficult for the government to remove – repositories of rights for ordinary people to insist on a truly national, truly public NHS.

CCGWatch has been set up to enable local communities to harness those rights to defend the NHS, and to prevent many more Hinchingbrookes, Westons and GEHs. If you are able to do so, please use the PayPal link on the right of this page to make a one-off or regular donation to help make it possible to conduct this fight in as many areas as need it.

On Saturday, over 50,000 people marched through Stafford in support of their local hospital, which has been put into administration by regulator Monitor on behalf of the Department of Health. As the SKWAWKBOX blog pointed out, the ‘independent’ administrators appointed by the government to review the provisional decisions made by the original CPT team are none other than… the same original team.

As a commenter on the SKWAWKBOX blog pointed out, the speeches given by those addressing the marchers on Saturday were impassioned and plain-spoken – in stark contrast to the twisted, opaque statements made by the so-called ‘independent’ administrators about their plans. Here is an excerpt from the speech made by Support Stafford Hospital campaigner Cheryl Porter:

Nye Bevan said ‘The NHS will last as long as there are folks left to fight for it!’ Well I can see that there are many people willing to stand up and fight for the best national health service in the world! This is just the beginning of the fight, not only for our hospital but for lots of hospitals throughout Britain.

I have been privileged to meet some truly wonderful, dedicated people recently and they haven’t had a voice! Today I hope we have given them a voice.

We all need to shout loud, be proud and let the GP’s. the administrators and the government know that we want OUR hospital.Please, Please….. pleaseI ask each and everyone of you to ask your GP whether they are in favour of closing services at Stafford, I want you to write to the administrators and tell them,……tell them we want A&E,Tell them we want critical care….Tell them we want paediatrics…..Tell them we want ICU….Tell them we demand Maternity…..Tell them we want our hospital!

Now, compare that with this, from the ‘independent’ administrators’ website:

The TSAs will also be undertaking a market engagement exercise to understand the appetite of other healthcare providers to deliver services in the local community. This engagement forms part of the TSAs’ work to develop potential solutions to ensure the sustainability of services and it will contribute to the development of the recommendations in the draft report which will form the basis of the formal consultation.

Convoluted, detached, opaque – and as serious as a heart attack if, like those 50,000+ marchers, you care about real NHS services in Stafford or anywhere else. The ‘market engagement exercise to understand the appetite of other healthcare providers to deliver services in the local community’ – if put as plainly as the language used by the speakers on Saturday afternoon – would read something like this:

We want to privatise Stafford’s services, and we are going to talk to any and all private providers to see who fancies a piece of the pie.

The people of Stafford have said loudly and clearly what they want – they want to keep their NHS hospital, which is now among the best in England. But the government, for all its talk of ‘choice’ and ‘localism’, has no intention of missing the opportunity it sees, not only to close Stafford hospital and farm services out to private companies, but to set a precedent that it can apply to other hospitals as well – and it has targeted36% of England’s hospitals just for the first phase.

The people of Stafford deserve to keep their hospital, in spite of the ‘smear-job’ that has been done on it by the media and by government. But they’re going to have to continue fighting if they’re going to do so.

The NHS Constitution gives every single person in and around Stafford the legal right not only to be ‘consulted’ about which of a pre-decided list of options they have to put up with, but

to be involved, directly or through representatives, in the planning of healthcare services, the development and consideration of proposals for changes in the way those services are provided, and in decisions to be made affecting the operation of those services.

These legal rights are not being respected by the government’s ‘hatchet men’, the Trust Special Administrators. CCGWatch urges the people of Stafford to engage legal assistance and demand their right – the right to be right at the heart of the deliberations and decision-making. Not just one or two representatives that might be railroaded by the ‘hit squad’, but an overwhelming presence.

Every person who relies on Stafford hospital has that legal right individually. If the TSAs do not acquiesce, they could quite conceivably be tied up in legal wrangling while the hospital remains open until the country has a chance to change its government, if each person insists on their right to participate – the rights of the Constitution apply to patients and public alike.

Given the high-profile, career-making nature of the case, it might be possible to find barristers who would represent the townspeople free of charge. If not, then the people of Stafford are going to need funds urgently for the fight.

Just as CCGWatch urges the people of Stafford to ‘fight the good fight’ for all our sakes, we urge every person who reads this to contact Support Stafford Hospital to offer a donation to create a fighting fund – not just for the sake of Staffordians, but for your own self-interest. If the government gets away with its plan to pull apart Stafford hospital and throw the pieces to its private health supporters, your own local hospital is likely to be on the list sooner rather than later.

(And, if you can afford to do so, please consider using the Paypal link on the right of the screen to make a small one-off or repeat donation to CCGWatch for the wider fight to preserve the NHS).

It’s always been a point of pride and principle for me that I’ve never taken a penny for any of my writing or activism. It’s a matter of personal passion and conviction that has led me to devote virtually every spare moment to researching and writing, contacting experts and MPs, travelling to meetings etc.

It’s cost me money, but I have never even taken expenses – I believe we need to put our time and money where our mouth is to defend what’s important. But I believe it’s now necessary to depart from my usual rule in one very specific area, and I’m hoping you’ll help.

If you’ve visited my ‘SKWAWKBOX‘ blog, you’ll know that the NHS is under sustained, concerted attack by the Tory-led government, which is using every means possible to erode, dismantle, wither and sell off the UK’s greatest social achievement. The attack is based on ideology and greed – and a complete lack of concern for the wellbeing of ordinary men, women and children.

In April, one of the most major and far-reaching changes kicks in as the new Clinical Commissioning Groups (CCGs) become responsible for commissioning all health services in their local area. Through its ‘Section 75′ secondary legislation, the government is trying to force CCGs to include private healthcare providers in every bid for services.

But even if this move is defeated, CCGs will be under significant pressure to include private bidders in tenders for health services – and to award contracts to those private, profit-taking companies. Private health providers have already attempted to gain influence over CCGs by creating joint ventures with GPs that will participate in CCGs, and the government has a clear preference for ‘marketising’ the NHS.

Monitor (the regulatory body that oversees NHS services) will impose a ‘lowest-cost’ interpretation of the Health Act’s ‘best value’ provision, even though a true NHS provider – which doesn’t take profit out of the NHS funds and will keep health facilities in public ownership – will inevitably represent true best value. Once gone, true NHS bodies will be lost permanently and replaced by private bodies subject to profit targets and the vagaries of market forces.

The scale of the problem

With over 200 CCGs taking over the commissioning of services from April, it will be incredibly hard for the public and health workers to know what’s happening with regard to their services in time to do anything about it effectively – and extremely difficult for activists to have a clear picture of what’s going on, let alone to co-ordinate action.

But there is still hope. A couple of weeks ago I discussed with Shadow Health Secretary, Andy Burnham:

to be involved in discussions and decisions about your healthcare, and to be given information to enable you to do this. (NB: not just treatment, but wider healthcare)

to be involved, directly or through representatives, in the planning of healthcare services, the development and consideration of proposals for changes in the way those services are provided, and in decisions to be made affecting the operation of those services

In addition there are (non-statutory) commitmentsthat form part of the constitution. These include a commitment

to provide you with the information you need to influence and scrutinise the planning and delivery of NHS services(pledge); and to work in partnership with you, your family, carers and representatives

and

to engage staff in decisions that affect them and the services they provide, individually, through representative organisations and through local partnership working arrangements.

The document also places expectationson anyone working within the NHS:

to play their part in sustainably improving services by working in partnership with patients, the public and communities

to view the services they provide from the standpoint of a patient, and involve patients, their families and carers in the services you provide

Based on these rights, duties, commitments and expectations, I believe that it will be possible for the right person or group to:

engage with local communities and unions to be named as a ‘representative’ to allow a legally-underpinned interaction with CCGs

require of CCGs to provide timely information on any plans to change how services are provided, especially details of planned tenders or approaches to the Any Qualified Provider (AQP) marketplace

work with local communities and unions to demandrepresentation on the CCG and involvement in both discussions and decisions about awards of contracts to provide NHS services

demand that ‘best value‘ is applied in its widest sense of long-term sustainability, public ownership, community impact (through lost wages and restricted services due to private companies taking a profit margin etc) and the retention of public NHS personnel and infrastructure that, if lost to a private provider, will be very hard ever to reacquire or rebuild

provide a central, easily-accessible source of information for individuals and community action groups to know what their CCGs are doing or planning and a partnership to help co-ordinate the above actions

challenge awards to non-public entities

If these rights and duties can be effectively harnessed, they will provide the means to prevent, or at least seriously impede, the government’s back-door sell-off of the NHS to private health interests that will seriously harm the interests and wellbeing of ordinary people until we can oust our odious excuse for a government in 2015.

Launching…CCGWatch

With a view to this, I am launching CCGWatch. If I can get it off the ground,CCGWatch will:

build contacts with local unions and activists to engage them in the process

contact every CCG to remind them of their statutory duties and to require them to provide information on their activities and tenders

publish details of tenders, bidders and decisions

co-ordinate resistance to the transfer of services to private providers based on the information obtained as a legal right

Can you help?

It will take a lot of time and resource to start and maintain such a service – to do it properly will be a full-time project and might also mean employing others once things are fully up and running. There will also be significant costs involved in travel to meet local community groups, unions and CCGs, in communication and possibly in legal expenses if CCGs or private providers contest the involvement of local people.

To meet this challenge, I’ve decided to try to crowdfund the project, so that I can devote myself to it full-time for the next couple of years leading up to the 2015 general election. If successful, this will provide a powerful statement to politicians and clinical commissioners of the public’s commitment to the NHS – and it will fund what may be the best chance of minimising the impact of the government’s attrition of genuine, public health-service provision between now and the next general election.

To this end, I’ve added a PayPal ‘donate’ link at the right of this page. If you’re a believer in a national NHS that is truly publicly-owned and that will continue to deliver health-care ‘free to all at the point of need’ as it was founded to do, please click the link and donate what you can. Any amount, great or small, will be a massive help, and you have a choice between a one-off donation or a monthly amount.

Because I believe transparency and integrity are essential to combat the deceptions and misleadings this government employs to achieve its ends, and I want supporters (and opponents, for that matter) to be able to see how every single penny is raised and spent, I’ll set up a section of this blog for reports on funding received and how it is spent.

Thank you for your help if you choose to offer it, and for reading this far even if you don’t.

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Minefield (n) /ˈmīnˌfēld/: an area laid with explosive devices, intended to prevent incursion or protect a valuable target

I’ve spent a pleasant couple of hours reading through the government’s hurriedly-drafted amendments to its ‘Section 75′ (S75) regulations. These new rules, which the government tried to slip through Parliament without debate or vote, were designed to force the new Clinical Commissioning Groups (CCGs) to invite private providers to bid on any NHS contract, were blocked by Labour with the assistance of a brave LibDem MP (I know, there aren’t many these days).

The government ‘paused’ its legislation with a promise to rewrite it to calm the fears of LibDem objectors, with health minister Norman Lamb claiming that the government took the objections extremely seriously and was committed to honouring its 2012 promises that CCGs would not be forced to include private providers unless they felt it best for the population they served.

In spite of this statement, many expected that the government would simply look for ‘better’ wording that would allow the LibDems to acquiesce while retaining its core aims.

They were right – and wrong.

The government has amended a few of the technical terms in its ‘secondary legislation’ – but it has also turned the regulations into self-contradictory mess that is designed to achieve its ends through fear of challenge and litigation rather than by plain fiat.

The new S75 regulations – a legal minefield designed to steer CCGs toward privatisation

The main change to the wording on competition looks ok on the face of it, albeit that the distinction is subtle. Instead of saying that CCGs must not engage in ‘anti-competitive behaviour’ that is

not necessary for the attainment of intended outcomes which are beneficial for people who use such services

section 10 of the regulations says that CCGS

must not engage in anti-competitive behaviour unless to do so is in the interests of people who use health care services for the purposes of the NHS

So, you would think that, instead of having to show that they’re declining a competitive process because there’s no other way to meet the needs of patients, CCGs now only need to demonstrate that it’s in their best interests. But a sub-paragraph of the same section still says:

(2) An arrangement for the provision of health care services for the purposes of the NHSmust not include any term or condition restricting competition which is not necessary for the attainment of-
(a) intended outcomes which are beneficial for people who use such services

So the rules are contradictory. CCGs will still be extremely wary of limiting competition because the self-contradictory nature of the regulations results in a minefield of potential legal challenges.

A well-known NHS campaigner once told me that

the only thing the NHS is more afraid of than lawsuits is the risk of lawsuits

and the new regulations are designed (or turn out through sheer shoddiness and incompetence, or both) to be so self-contradictory that the only ‘safe’ decision a CCG can take is to include private bidders by default.

There are several ‘mines’ of this type in the minefield.

With regard to the inclusion of private bidders, the regulations still include the most critical provision:

(2) The relevant body must—..(b) treat providers equally and in a non-discriminatory way, including by not treating a provider, or type of provider, more favourably than any other provider, in particular on the basis of ownership.

In other words, excluding private providers because they are privately-owned is strictly forbidden.

Section 3 of the regulations says that, in procuring services, CCGs must

provide best value for money in doing so.

‘Best value’, by any genuine and rational definition, is not merely a question of ‘lowest price’. Best value for an NHS service should take into account such factors as the benefits of retaining expertise and infrastructure in public ownership, avoiding the risk to services and skills if a private provider goes out of business or simply decides that it’s no longer profitable to continue providing services, and preventing the fragmentation that must inevitably be a consequence of NHS services consisting of a series of private companies rather than a national, integrated body, and many other factors.

But by insisting that decisions ‘in particular’ cannot take account of ownership, the new regulations effectively strip all of these considerations out of the decision-making process – and turn ‘best value’ into ‘lowest price’. Any attempt to do otherwise will be subject to overturning by Monitor or legal challenge by would-be private providers.

There are other provisions of the regulations which reinforce the right of private providers to be included in any bids, whatever other parts of the new rules might say:

Award of a new contract without a competition

5.—(1) A relevant body may award a new contract for the provision of health care services for the purposes of the NHS to a single provider without advertising an intention to seek offers from providers in relation to that contract where the relevant body is satisfied that the services to which the contract relates are capable of being provided only by that provider.

So, the softening of one part of the regulations is completely offset by point 5, which says that the only reason a CCG can award services without either issuing a tender or going to the ‘any qualified provider’ (AQP) marketplace is if there is only one provider capable of providing the service in the first place. Since this would be true of almost no conceivable health services, in effect the regulations mean that all services must be competitively sourced – just without actually saying so in as many words.

Point 7 states:

a relevant body may not refuse to select a provider that meets the criteria established by the relevant body for the purposes of that decision, except where to do so would mean exceeding a limit set by the relevant body on the number of selected providers.

So, CCGs cannot impose a selection criterion to exclude privately-owned companies – and cannot exclude any companies that meet its selection criteria. This is a long-winded way of saying ‘private providers must be included’.

The regulations, in one stroke, still rip the NHS wide open to private providers andload the dice in their favour by making cost the only factor. As private providers will not be bound by the fair, national wage structures that NHS providers must adhere to, they will be free to cut wages and numbers to enhance profits while still undercutting NHS providers.

Once again, the government is creating a ‘race to the bottom’ whose only beneficiaries will be private shareholders.

As a sop to the LibDems and an attempt to deflect criticism and resistance, the new rules contain a new provision that completely contradicts the above regulations. Section 15 states that

(2) Monitor may not direct a relevant body under paragraph (1) to hold a competitive tender for a contract for the provision of health care services for the purposes of the NHS.

But this is completely contradicted by the earlier points already mentioned and by section 14, which says

Monitor may declare that an arrangement for the provision of health care services for the purposes of the NHS is ineffective

if a contract does not meet the conditions outlined above. It goes on to specifically and separately state that contravening item 10.2 is a reason for Monitor to declare a contract award ‘ineffective’. Item 10.2 is the section that says that:

(2) An arrangement for the provision of health care services for the purposes of the NHSmust not include any term or condition restricting competition which is not necessary for the attainment of—

(a) intended outcomes which are beneficial for people who use such services

So, Monitor – the regulatory body – cannot insist that a CCG invites competition for a contract – but it can cancel any contract that is non-competitive (unless the CCG can demonstrate the strict ‘necessity’ of non-competition for the delivery of a service, which is basically impossible).

The government’s original secondary legislation under S75 was criticised for being vague, shoddily written and for forcing CCGs to advance the privatisation of the NHS.

The only substantive change in the amended regulations is that the government uses shoddiness and vagueness to create a minefield that is designed to scare CCGs away from any course of action that does not include private providers – and to tip the scales in favour of those private providers.

Private providers will have deeper pockets than CCGs and will have far less fear of legal expenses. CCGs are intended to feel that their only course is to play safe and include private providers in every tender, because the various contradictions in the revised regulations make it impossible to be sure that any other decision won’t be overturned either by Monitor, or in court at significant expense.

True to form, the government is resorting to weasel words, subterfuge and superficial changes to try to defuse opposition enough to get its way.

The intent and the threat of the original legislation has not changed one jot – and all those who love the NHS need to make their voice heard to make sure that the amended version is blocked even more emphatically than the first one.

In spite of those initial donations, further progress toward a workable amount has been slow. While I’m in discussions with unions, campaign groups and the Labour party, I do hope to be able to generate a substantial portion of the funding for this project through crowdfunding to make it a genuinely popular movement that sends a clear message to this government of how we value our NHS.

But it struck me that credibility might be an issue – how can those who don’t know me well via my blog, Twitter or in person be sure that CCGWatch is legitimate and that donations will be used for the right purpose?

Grahame Morris, Labour MP for Easington and member of the Commons Health Select Committee, who knows me well and with whom I’ve collaborated on health issues, has very kindly agreed to provide a testimonial, so that if you choose to donate to CCGWatch you can do so with confidence.

Here it is:

If you’d like to donate to help what I genuinely believe is a critical venture for the survival of the NHS over the next couple of years as the government seeks to use its Health and Social Care Act and secondary legislation under it to dismantle the NHS as we know it, then please use the Paypal link on the right-hand side of this page to give what you can.